October 11, 2008

Two high school freshmen sued the Poway School
District, a principal, and an assistant principal, alleging various federal and
state civil rights violations arising out of failure to quell peer sexual
orientation harassment of an anti-gay nature. Following a jury trial, the two
plaintiffs were awarded damages of $175,000 and $125,000, respectively.
Plaintiffs then filed a motion for attorney’s fees based on Code of Civil
Procedure section 1021.5 and 42 U.S.C. section 1988. The trial court granted
the fee motion under section 1988, awarding fees of $421,357 and costs of
$29,040.68. Both sides appealed, including plaintiffs’ cross-appeal of the
denial of fees to them under Code of Civil Procedure section
1021.5.

In Donovan v
Poway Unified School District, Case No. D047199 (4th Dist., Div. 1 Oct.
10, 2008) (certified for publication), the Court of Appeal decided that Title
IX’s elements govern peer sexual orientation harassment claims under Education
Code section 220 and that money damages are available in a private enforcement
action—affirming the compensatory award in plaintiffs’ favor. It also affirmed
the fee determination, deeming that plaintiffs were really challenging the award
as too low given that either of the two statutes relied on by the trial court
entitled them to recover attorney’s fees as prevailing parties.

Plaintiffs were awarded their requested lodestar of $336,800, based on
1,528 hours of legal work by their counsel (with the trial court only deducting
2 hours of work). Plaintiffs requested a 1.7 multiplier (for a total award of
$572,560), but the trial court believed that a .25 multiplier (producing the
actual $421,357 award) was appropriate.

In a nice review of lodestar enhancement principles, Justice
Nares—writing for the 3-0 panel—observed that trial courts have broad discretion
to increase or decrease the lodestar figure. (Ketchum v. Moses, 24 Cal.4th
1122, 1132 (2001); Nichols v. City of Taft, 155 Cal.App.4th 1233, 1240 (2007).)
The Court of Appeal found that the trial court had thoughtfully applied the
Ketchum lodestar adjustment factors—novelty/difficulty of questions; skill
displayed; preclusion of other employment; and contingent risk of the award—in
coming to a 0.25 multiplier. The merits and fee judgments were affirmed across
the board.

This case illustrates how difficult it can be to surmount the abuse of
discretion standard where careful findings in support of a fee award are made by
the court below.